September 17 is Constitutional Day. The conservative establishment will undoubtedly write platitudes to the Constitution, thus creating the illusion that our government still abides by it. It is true that Alexis de Tocqueville observed that the Constitution was the best-crafted document in the world. But that document crafted by the Founding Fathers and eulogized by early Americans and foreign observers is dead, so it is rather moot to praise a Constitution that exists on paper and in historic memory but which has little bearing on modern American governance.
The American Constitution has proved longstanding, at least nominally so, and especially in comparison to the many written and ephemeral constitutions of the Mexican Republic and the French Republic. But the only reason the American Constitution has proved longstanding and nominally continuously in existence since 1787 is because, since at least 1861, and certainly after 1933, the Constitution has all but been abrogated. Indeed, even the attempts at “original intent” miss the boat when it comes to Constitutional constructionism.
What made the American Constitution great, and what made Tocqueville laud its creation, was the fact that it explicitly limited federal power. The Ninth and Tenth Amendments make the reality of Constitution abundantly clear: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The ninth amendment states, clearly, that we have more rights than what is listed in the Constitution. The language of the amendment, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” presupposes that there are rights that the people have that didn’t need to be enumerated. That is because the Framers of the Constitution, owing to the Christian and Western tradition of natural law and political philosophy, understood that man had many natural rights—too numerous to list in a document that wasn’t concerned with the juridical construction of civil rights for citizens.
The Tenth Amendment, the so-called “states’ rights amendment,” is actually a limiting power and identification amendment. It expressly and explicitly limits the power of the federal government through its language: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” By stating that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” the Tenth Amendment makes clear that only the powers expressly delegated in the preceding seven articles of the Constitution are those delegated to the federal government. Thus the Tenth Amendment is a limiting powers amendment and allows us to better understand that the Framers had no conception of “implied” powers except in the imagination of those who wanted to maneuver away from the Constitution to a more controlled political arrangement of society. That which is not expressly delegated is simply not delegated. Plain and simple.
Moreover, the Constitution doesn’t speak of a nation. Instead, it speaks of a Union, of individual states, and of people. The “new nation” conceived of in mind of Abraham Lincoln makes the necessary paeans to America’s founding documents to alter the interpretation of the founding documents to a nationalistic and centralistic zeitgeist—one that was sweeping across nineteenth-century Europe and eroding all the old traditions of the bunds in Germany, the provinces and apanages in France, and, ultimately, the states in the United States. In speaking of a Union, the Constitution promotes a union of states under the federal umbrella, which can provide for the common defense, raise import taxes, and mint coins. In speaking of states and people, the Constitution safeguards civil society from its destruction by a federal government. The federal government serves the states and the people and cannot intrude on civil society and local townships, that is what the “original intent” of the Constitution is about. Today, of course, we have the opposite: People and civil society, as well as the states, serve the federal government.
Lincoln began the first constitutional coup by presiding over a political revolution that transformed the Union and abrogated the Constitution. Seizing on executive and wartime powers, Lincoln elevated the executive branch over the other branches and subjugated the many states of the Union—both north and south—to the new federal leviathan. The southern states were not the only states subjugated to Lincoln’s federalizing tyranny. The northern states were subjugated as well. After the war, the federal government also embarked on an ambitious economic program, stretching the interpretation of the “welfare clause” to do it.
The preamble of the Constitution does speak of promoting the “general welfare.” But as any student of literary construction knows, a preamble, or a preface, informs the reader of what is to come. When the term welfare is used again, it is in the first article of the Constitution, in the eighth section, which deals with Congress. The term welfare is used only twice in the American Constitution, in the preamble and in the first article. Taken properly, the eighth section of the first article explicitly lists the welfare powers of the American government. There is nothing delegated to the federal government concerning healthcare, retirement or social security, food stamps, etc. Those powers not expressly delegated to the federal government by the Constitution are, therefore, reserved to the individual states but not to the federal leviathan.
Enter Franklin Roosevelt. Roosevelt ascended to the Presidency during the economic turmoil of The Great Depression. But his New Deal was socialist in all but name: not the revolutionary brand of socialism influenced by the eschatological expectations of Marx and Engels, but the economic socialism of Eduard Bernstein and European social democracy. The emergent “Conservative Coalition” of Midwestern and Western Republicans and Democrats, and southern Democrats, that emerged to fight Roosevelt’s New Deal programs knew well that the New Deal entailed economic and social control under the tentacles of the federal government. All the New Deal programs instituted by Roosevelt are unconstitutional, irrespective of the Supreme Court’s rulings or lack thereof, because not a single New Deal program is delegated to the federal government by the Constitution’s expressly listed powers.
The Supreme Court, knowing this, often struck New Deal programs down as unconstitutional in Roosevelt’s early years. This enraged the aspiring authoritarian from New York. He wanted to the pack the Court with justices he knew would abide by his totalitarian wishes in a clear assault on the independence of the judiciary. Over time, the Court was subdued, and Congress rammed through New Deal legislation that forever changed the social arrangement of the Union. Now the Supreme Court, instead of ruling federal legislation unconstitutional, rules that states and individuals are acting in unconstitutional ways. Instead of judicial activism we suffer from a Judicial Branch that acts as the strong arm of the executive branch. The Supreme Court feeds the power of the executive just as Lincoln and Roosevelt long desired.
If Lincoln began the subjugation of the states to the federal government, Roosevelt solidified it and began the social revolution which also upended the Constitution. If we return to the Constitution, the Constitution ensured that civil society would not be destroyed by a federal government. But that’s precisely what the New Deal achieved. Society was now subjugated to the federal government. In establishing social security and other welfare measures that prolonged the Depression, and, in many ways, never fixed the American economy but permanently destabilized it to the point where the war economy is the only thing that perpetuates the American economy, Roosevelt managed to subjugate civil society to the new federal bureaucracy.
Living under the post-New Deal regime has made discussing the Constitution nearly impossible. Instead, the “constitution” of welfare and economics is the new guiding document for both parties. Lyndon Johnson’s Great Society was just an expression and extension of this new reality. There is now no concern as to whether a proposed policy initiative or program is constitutional. It is accepted, prima facie, that all federal policies are. The question becomes whether or not a majority of Americans will benefit from an unconstitutional program—often from a mere economic perspective.
For example, when raising the issue of federal healthcare, apart from a few notable exceptions, the conservative retort was that it was “socialist,” “un-American,” or that it “would cost too much.” Those arguments implicitly accept federal healthcare’s constitutionality. The real argument against federal healthcare is that it is nowhere delegated to the federal government in the Constitution. The issue of whether something is “socialistic” is entirely the wrong question to raise (though we constantly hear it today). The real issue is whether something is constitutional. That few conservatives raise this issue shows how deracinated and insensitive conservatives are to the Constitution. They accept executive fiat as much as Democrats do.
The American Constitution is worthy of veneration—but not as the relic of history it is now. It should be venerated to remind Americans of what it actually says and why it should be re-imposed over our unconstitutional regime.
I recognize the potential criticism I may get for assailing the two new founding fathers of our unconstitutional, indeed, anti-constitutional, regime, but mainstream conservatives are complicit in this sad reality. By speaking glowingly of Lincoln and Roosevelt as saviors and visionaries, the mainstream conservative establishment helps to perpetuate the illusion that the Constitution still guides the Union. It doesn’t. This is precisely what the anti-constitutional regime wants. It wants the illusion that we are still under constitutional governance and the best way to maintain this illusion is to have those who claim to care about the Constitution fawn over its greatness while remaining blind to the reality of its abrogation.
This Constitution Day shouldn’t be a time of celebration; it should be a time of sad remembrance. The Constitution is dead and buried. Instead of celebration, we, the Constitution’s faithful disciples, should work for its resurrection. This will be a hard and long project. It will not happen overnight. It may take several generations. But we have no other choice.
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